March20,2018

An Obama administration directive with the aim of driving down disproportionately high school discipline rates for black and Latino students took center stage at a congressional hearing on school safety Tuesday.

That guidance, issued by the U.S. Departments of Justice and Education in 2014, includes a call for schools to ensure that they are not involving law enforcement in routine disciplinary issues. It also put schools on notice that they may be in violation of civil rights laws if their disciplinary policies lead to disparately high discipline rates for students of color, even if those policies were written without discriminatory intent.

The Broward County, Fla., district—where the Feb. 14 shooting at Marjory Stoneman Douglas High School killed 17—created a 2013 agreement with law enforcement agencies whose officers work in its schools to clarify when to involve officers in student discipline and to set up a diversionary program, called PROMISE, as an alternative to student arrests. That program was held up as a model by the Obama administration as it encouraged schools to rewrite their discipline policies.

Some Republicans on the House Judiciary Committee's subcommittee on crime asked Wednesday whether the accused shooter, 19-year-old Nikolas Cruz, should have been arrested at Stoneman Douglas when he was a student there. If he had been arrested, the infraction may have shown up on a criminal background check before he bought a gun or confirmed to the FBI that he was a possible threat, the lawmakers said. They cited news reports that said the suspect was frequently disciplined at school and was known for disturbing behavior, like killing small animals, but they did not name a specific offense he should have been arrested for.

"The question needs to be asked why Cruz was never placed under arrest, either at school or at home," said Rep. Jim Sensenbrenner, R-Wisconsin, the chairman of the subcommittee. "He clearly had a violent past, a past that is properly handled by law enforcement."

Sensenbrenner also listed concerns about Cruz that did not relate to school discipline. He noted that the Broward County sheriff's office had been called to the suspect's home dozens of times and a tip passed on to a deputy who worked at the school that Cruz may be planning a school shooting. He also called out the failure of the FBI to investigate a tip from a caller who feared Cruz may one day be a school shooter, and noted that the school had once recommended he be involuntarily committed for a mental evaluation.

Democrats on the committee said critics of Obama-era discipline guidance were trying to use it as a scapegoat and a distraction from the need for new gun laws. They said the guidance had helped make critical progress for black and Latino students, who are often disciplined at higher rates than their white peers in school. And they criticized loopholes in the background check system that may have allowed the suspect to buy a gun, whether or not he had an arrest on his record.

"The issue of school discipline is a worthy topic of discussion, so long as it is constructive and not intended to undermine progress in reforming disciplinary policies that have been racially biased and counterproductive for a long time," said Rep. Jerry Nadler, D-N.Y., the ranking member of the subcommittee. "Unfortunately, some individuals are advancing the charge that reforms to these policies contributed to the Parkland shooter not having been stopped. To use a horrible mass shooting as a pretext to halt progress in these much-needed reforms is offensive."

Criticism of the discipline guidance predates the Parkland school shooting

Critics of the Obama-era discipline guidance have pushed for U.S. Secretary of Education Betsy DeVos to revoke or revise it since she took office. DeVos has said she is reviewing the document. After Florida Sen. Marco Rubio, a Republican, questioned the guidance, the White House listed it as one of the items DeVos will review as leader of a task force on school safety. In a recent 60 Minutes interview, DeVos would not say if racial disparities in school discipline rates are caused by systemic racism.

The guidance calls on schools to explore the underlying causes for discipline disparities, like implicit bias that causes teachers to perceive behavior differently depending on a student's race, inconsistently applied policies, and vaguely worded school rules against infractions like "defiance" that may be interpreted subjectively and applied differently by different teachers.

But critics, like Manhattan Institute Senior Fellow Max Eden, say schools have rushed to comply with the guidance by limiting the use of suspensions, creating unsafe and disruptive learning environments. School officials fear federal investigations if their suspension rates are uneven, Eden told the subcommittee Wednesday. In some districts that have made such changes, teachers have complained that they are unprepared for new discipline policies or that they don't know how to deal with disruptive students, he said.

Civil rights groups and organizations like the Congressional Black Caucus have spoken out in support of the guidance in recent weeks, fearing that it may be revoked. Black and Latino students are too often disciplined and arrested at school for minor, non-violent infractions, they say. They cite incidents like a 2015 viral video of a South Carolina girl who was violently dragged from her desk by a school police officer and arrested in math class after she refused to surrender her cell phone. A classmate who recorded the interaction was also arrested for "disturbing a school."

"To put it simply, neither the purpose nor the letter of the federal school discipline guidance restricts the authority of school personnel to remove a child who is threatening student safety," Kristen Harper, a former Education Department official and policy director for Child Trends, told the committee.

The guidance does not prohibit schools from referring students to police, she said. Rather, it recommends that schools "establish procedures and train school personnel...how to contact law enforcement when warranted." And calls in the guidance to address disparate discipline rates echo previous court decisions, which have flagged schools for policies that affect one student group more heavily than the other.

"There is no conflict between our obligation to prevent discrimination based on race and our obligation to keep children safe in school," Harper said. "We can and must do both."

Harper called on Congress to provide resources for schools to help create positive learning environments and to help support students with emotional and behavioral concerns.

Broward County's school discipline plan

Broward County Superintendent Robert Runcie has been pushubg back against criticisms of his district's discipline plan. He's emphasized that it focuses on non-violent behaviors.

The district has no record of Cruz committing an infraction that might have placed him in the PROMISE discipline program while he was in school, Runcie said in a statement submitted to the committee. The matrix allows staff to consult with law enforcement on the first offense for a variety of behaviors, including a major fight, hazing, sexual misconduct, an assault that causes injury, the threat of such an assault, and battery.

"The District's position with the PROMISE program and school discipline reform efforts, in partnership with local law enforcement, has always been explicitly clear— that there is no intent to limit or tie the hands of law enforcement in doing their jobs in addressing school safety," Runcie's statement said.

Eden acknowledged that the Broward County program was created by the district's own volition before the Obama directive was put into place, but he said many districts have adopted similar approaches to student discipline since the 2014 guidance.

He also acknowledged that the guidance doesn't explicitly prohibit or limit student arrests.

"My issue is that this policy of explicitly trying to push these numbers down can inhibit the good and fair judgment of school resource officers to issue arrests where they may be warranted, and those arrests then feed into the system in a way that could have been constructive in this case," Eden said.

Questions about Cruz's disciplinary, mental health, and emotional history will likely be answered in coming months. A school safety bill recently signed by Florida Gov. Rick Scott, a Republican, established a state commission with subpoena power to investigate the Stoneman Douglas High School shooting. And, at Runcie's recommendation, the school district has hired an outside consulting agency to conduct a review of Cruz's history with the district and the policies that were in place while he was a student.

Graham has also called a potential Mueller dismissal an impeachable offense.

Additionally, the seat of one key Republican member of the Judiciary Committee at the time, Republican Rep. James Rogan of California, is now held by Adam Schiff (D-Calif.) - the ranking member of the House Intelligence Committee, probing Russian interference.

March20,2018

Chairman Sensenbrenner, Ranking Member Jackson Lee, members of the committee, it is my privilege to appear before you today as the Deputy Director of the FBI.

On February 14, 2018, at Marjory Stoneman Douglas High School in Parkland, Florida, a former student allegedly shot 17 innocent people and caused significant physical and emotional harm to countless others. This tragedy abruptly ended the lives of kids who had their lives and dreams ahead of them, and stole from their families the right to watch their children grow into adulthood. As you know, the alleged perpetrator of this unspeakable violence is in custody and has been charged with 17 counts of premeditated first-degree murder and 17 counts of attempted first-degree murder by the state of Florida.

To the victims, families, and friends of those who were killed or injured on that day: Director Wray and I and the rest of the FBI extend our deepest sympathies to you. Though nothing can be said to undo the hurt and loss you all feel, please know the FBI continues to work closely with our state and local law partners in Florida to ensure that justice is served.

Unfortunately, as was disclosed by the FBI shortly after this terrible incident, the FBI did receive two separate tips that we now know were related to the alleged shooter, Nikolas Cruz. As the FBI Director has made clear, the FBI could have and should have done more to investigate the information it was provided prior to the shooting. While we will never know if any such investigative activity would have prevented this tragedy, we clearly should have done more.

Our investigation continues into exactly what the FBI learned prior to February 14, 2018, and what we did and did not do in response.

To summarize the results of our investigation to date, let me walk the Committee through the relevant timeline as we understand it.

It is important to know the FBI receives tips from the public through our Public Access Line, or PAL. The PAL is the FBI’s central contact center for all calls, electronic tips, and public leads made to the FBI’s 56 field offices. The access line is responsible for receiving and vetting information from the public, then disseminating it to the field as actionable tips and leads for special agents and intelligence analysts. To understand the volume of leads we receive, during 2017, the PAL handled approximately 765,000 calls and 735,000 e-mail tips.

On September 25, 2017, the FBI received an e-mail tip from a person in Mississippi who indicated that a person, unknown to him, posted on his YouTube page the following text: “Im going to be a professional school shooter.” The posting was from the username “Nikolas Cruz.”

In response to this tip, the PAL opened what the FBI calls a “Guardian” lead and assigned it to the FBI’s Jackson Field Office in Mississippi. Upon receipt of the Guardian lead, an FBI special agent, along with a local task force officer, visited the tipster and interviewed him on October 2, 2017. At the time of this interview, the agent was provided a copy of a “screen shot” of the subject post.

The agent conducted searches of both FBI databases and open sources. Believing the true identity of the poster could not be determined, the Guardian lead was closed on October 11, 2017, with no other investigative activity.

A few months later, on January 5, 2018, at 2:32 p.m., the FBI received another tip by way of a call to the PAL. The caller identified herself as a close friend of the Cruz family. The caller provided the following information about Cruz:

Statements about Cruz harming himself and others;

References to ISIS;

That he had threatened his mother with a rifle;

That he had purchased several weapons;

That he wanted to kill people and was going to explode;

That he was mutilating small animals; and

That the caller was concerned that Cruz might shoot up a school.

The caller also noted that Cruz was 18 years old but had the mental capacity of a 12- to 14-year-old. She indicated that she was very concerned and had contacted the Parkland Police Department, and wanted someone to look into this matter.

Upon finishing the call, the FBI operator conducted a search of FBI databases and found the closed Guardian lead out of Mississippi. The operator then consulted with her supervisor and the matter was closed. The information received was never forwarded to a field office or to any of our State or local partners for further review or action.

As FBI officials learned of the Parkland shooting incident, FBI personnel conducted a search of its holdings and discovered the two tips.

Please know the FBI is committed to maximum transparency in all that we do on behalf of the American people. While I cannot fathom the agony, horror, and anger of the parents of these young people who were robbed of their futures, I do again want to express our sorrow and remorse to the family members.

When we make mistakes, we will not hide them, and we are committed, with your help, to doing whatever is necessary to correct our mistakes and prevent tragedies like this one from being repeated.

March15,2018

It almost seems like half a lifetime ago, but only a half-decade has passed since James Clapper lied to Ron Wyden about the NSA's domestic collections. Wyden pointedly asked Clapper during an intelligence committee hearing whether or not the NSA was collecting "any type of data at all" on American citizens. Clapper gave two answers, both untrue: "No, sir" and "Not wittingly."

A couple of months later, the first Snowden leak -- detailing massive amounts of call data being captured in the Section 215 dragnet -- undid Clapper's careful, under-oath lies. Since then, nothing has happened. The DOJ refused to investigate Clapper for lying to his oversight. Clapper exited office a few years later, becoming a go-to national security expert for a variety of news programs. He has since offered a variety of excuses for lying, but none of them are particularly good.

As of March 12, the clock has run on perjury charges. James Clapper has violated federal law and gotten away with it.

Clapper, director of national intelligence from 2010 to 2017, admitted giving “clearly erroneous” testimony about mass surveillance in March 2013, and offered differing explanations for why.

Two criminal statutes that cover lying to Congress have five-year statutes of limitations, establishing a Monday deadline to charge Clapper, who in retirement has emerged as a leading critic of President Trump.

Some members of Congress had called for charges to be brought against Clapper, but they seemed based more on Republicans' newfound distrust for the "Deep State" than an honest desire to see a federal lawbreaker brought to justice. One of the reps, however, has held steady in his calls for Clapper's prosecution for the entirety of the last half-decade: James Sensenbrenner.

"Political consideration should not affect the Department of Justice from pursuing this matter,” Rep. James Sensenbrenner, R-Wis., said ahead of the deadline. “Complete and truthful testimony is imperative for Congress to conduct effective oversight. It is clear from the evidence and Director Clapper’s own admission that he lied.”

Both the DOJ and James Clapper have refused to comment on the issue. Presumably, both entities are happy the deadline came and went without further development. The "no comment" responses allow both to avoid discussion of the DOJ double standards. But this non-prosecution shouldn't pass without notice.

Jesselyn Radack, a defense attorney who represents Snowden and fellow NSA whistleblower Thomas Drake, however, takes a dim view of Clapper being let off the hook.

“It shows that government officials in positions of power can lie with impunity to Congress and the American people about outrageous abuses, but when ordinary citizens like Reality Winner reveal the truth about the same abuses, they face espionage charges and prison," Radack said, referring to the NSA contractor charged last year for sending the Intercept a report on Russian attempts to hack election systems.

Most people who lie to Congress won't have the luxury of exiting their current positions gracefully before popping in cable newsrooms all over the nation. But Clapper is one of the special ones -- the ones who won't be held accountable because the government takes care of its own, especially when dubious, Congress-approved surveillance programs are in the mix.

March14,2018

If we are a nation of laws and not of men, and if we believe in equal justice for all and special privileges for none, then our government has a funny way of showing it. As the Washington Examiner reports, the five year statute of limitations on perjury and/or false statement charges that could have been brought against former Obama administration Director of National Intelligence (DNI) James Clapper have now expired.

Clapper’s offending statements made in March 2013 concerned his denial of any National Security Agency (NSA) bulk data collection program, which was soon after exposed by Edward Snowden.

While giving congressional testimony under oath, Clapper responded untruthfully to a question from Democratic Sen. Ron Wyden about whether the NSA “collect[ed] any type of data at all on millions, or hundreds of millions of Americans.

“No, sir,” he asserted. “Not wittingly.”

Clapper would later admit in a written statement that his response was “clearly erroneous,” and that he “simply didn’t think of Section 215 of the Patriot Act,” the provision covering the NSA’s bulk metadata collection. During an MSNBC interviewhowever, he suggested that his statement during congressional testimony was the “least untruthful” he could make in the face of a “When are you going to … stop beating your wife kind of question.”

Predictably, in spite of the media’s supposed devotion to truth in defense of our democracy (to this author’s dismay, never our republic), and its historic sensitivity to the concealment of civil-liberty infringing acts of the state, nary a peep has been raised regarding the Justice Department’s unwillingness here to mete justice.

Why did the Justice Department sit on its hands?

Liberal constitutional law professor Jonathan Turley, writing in a January 2018 editorial anticipating this outcome, suggests that in Washington, D.C. “perjury is not simply tolerated, it is rewarded. … In a city of made men and women, nothing says loyalty quite as much as lying under oath.” Buttressing his argument, Turley cites a 2007 study indicating that dating back to the 1940s, all of six people have been convicted of perjury or related charges for lying to Congress.

In the run-up to the Justice Department’s decision to bring no charges, Republican Sen. James Sensenbrenner, the author of the original Patriot Act, stated, “Political consideration should not affect the Department of Justice from pursuing this matter.”

That Sensenbrenner invokes the scepter of politics here raises a big red flag about the state of our system of justice.

Consider the counterexample to the longtime Obama DNI chief in President Trump’s short-time National Security Advisor.

Prior to President Trump’s inauguration, then-deputy attorney general Sally Yates suggested that Lt. Gen. Michael Flynn may have violated the Logan Act — a law against private citizens engaging foreign officials to influence and/or undercut extant policy in disputes with the U.S., under which no American has ever been successfully prosecuted — over conversations Flynn had with foreign counterparts, including Russian Ambassador Sergey Kislyak during the Trump transition period.

Mere days after Flynn assumed office, then-acting attorney general Yates directed the Federal Bureau of Investigation (FBI) to interview Flynn, purportedly pursuant to her Logan Act concern. What Flynn said during this conversation would serve in large part as the basis for his prosecution under the Robert Mueller special counsel.

A conversation with Kislyak asking him to “refrain from escalating the situation in response to sanctions that the United States had imposed against Russia”

Calls made to foreign officials regarding an anti-Israel UN Security Council Resolution on which the Obama administration abstained rather than seeking to defeat — the Mueller team alleged Flynn directed counterparts to vote against or delay the resolution, while Flynn allegedly claimed he simply asked for his counterparts’ position on it

Documents filed with the Foreign Agents Registration Act in connection with a project undertaken by Flynn’s then-consulting company during the 2016 campaign season for the benefit of the Republic of Turkey

Taken as a whole, some of Flynn’s words and actions may have been ill-conceived or reflected poor judgment, though calling foreign counterparts during a transition period is certainly reasonable and customary. But charges were not brought against any of the actions themselves. Rather, Flynn pled guilty solely to process crimes.

Former federal prosecutor Andrew McCarthy makes a compelling case that the use of the Logan Act as the basis for the investigation into Flynn that teased out such crimes in and of itself was unjustifiable, not only because of the “highly dubious” nature of the law itself, but because of the guidelines FBI Director James Comey had set with respect to non-pursuit of charges relating to Hillary Clinton’s email server.

Beyond whether Flynn should have been investigated in the first place, several months after Flynn submitted his guilty plea, the Washington Examiner’s Byron York reported that then-FBI Director Comey in a March 2017 meeting with lawmakers claimed that the FBI agents who interviewed Flynn did not believe Flynn had lied to them or that inaccuracies in his answers were intentional.

The judge presiding over Flynn’s case was recused shortly after the guilty plea was submitted, replaced by a new judge who has asked the Mueller special counsel to produce for Flynn’s team the evidence “favorable to” Flynn and “material” to Flynn’s “guilt or punishment.” Sentencing has been postponed until May.

Whether this means Flynn may ultimately have reason to vacate his guilty plea or not, the process alone has served as a punishment, not only in at least indirectly costing Flynn his job, but also in tarnishing his career and financially crippling him.

In sum, under the pretext of a law under which no American has ever been prosecuted and as part of a special counsel based on a counterintelligence investigation under which contrary to rules and regulations no crime was specified, a national security advisor pled guilty to process crimes largely based on a conversation with FBI officers which the bureau at the time actually deemed truthful or at worst unintentionally inaccurate — all under a process that has destroyed Flynn’s life.

Clapper has faced no repercussions for lying under oath.

Is the Justice Department adhering to a double standard?

Both men served at the highest levels of the intelligence community (IC) in the Obama administration, with Flynn leading the Defense Intelligence Agency (DIA) and Clapper heading the DNI. Flynn challenged the administration in which he served, and the prevailing views within its national security and foreign policy apparatus, specifically over ISIS.

The DIA issued a classified report in 2012 foretelling the rise of a Sunni jihadist-led Islamic State across parts of Iraq and Syria. While the Obama administration was arguing that al-Qaeda was “decimated,” and “on the run,” Flynn’s DIA was predicting the growth of a new jihadist state led in part by Al-Qaeda in Iraq.

Flynn told TheNew York Times in 2015: “This particular report, this was one of those nobody wanted to see … It was disregarded by the White House … It was disregarded by other elements in the intelligence community as a one-off report. Frankly, at the White House, it didn’t meet the narrative.”

In February 2014, a month after President Obama called ISIS the “JV team,” Flynn told the Senate Armed Services Committee that ISIS would likely “attempt to take territory in Iraq and Syria to exhibit its strength in 2014, as demonstrated recently in Ramadi and Fallujah, and the group’s ability to concurrently maintain safe havens in Syria.” Here again, Flynn’s assessment proved accurate, but in conflict with what the administration he served was communicating, to its political detriment.

Obama fired Flynn soon after, citing his “chaotic” approach to management, his “aggressive push for changes” within the DIA, and “temperament issues.”

During the 2016 election, Flynn jumped on the Trump train. Those in the national security and foreign policy establishment must have been aghast. Hundreds of such prominent individuals who had served administrations across the political aisle signedletters opposing then-candidate Trump. One can imagine their horror in seeing Flynn on the stage yelling “Lock her up” with respect to former Secretary of State Hillary Clinton, and serving as the right hand man for the candidate seemingly repudiating everything for which they stood.

As former President George W. Bush speechwriter Mark Thiessen observed following Flynn’s appointment, ex-Obama administration officials lamented the selection of Flynn as National Security Advisor above all other appointments. None of this can be said of Clapper, who remained steadfastly loyal to the institutions he served, and has frequently challenged Trump.

It was Clapper’s DNI that oversaw the intelligence assessment made in conjunction with the NSA, FBI and Central Intelligence Agency asserting that Russia had sought to help Trump in the 2016 election, to the president’s great consternation.

He espouses these critical views as a paid contributor for Trump’s chief media adversary in CNN, an outlet to which we now find out Clapper may have leaked information on his classified briefings with then-President-elect Trump and President Obama on the Steele dossier in early 2017.

Flynn flouted the political establishment in the most flagrant of ways. Clapper has remained a member in good standing.

Could this in part explain the disparate treatment of these two IC fixtures by a Justice Department still in large part comprised of individuals averse to the anti-establishment president under whom they serve?

To the degree to which politics influences legal decisions made regarding high-ranking government officials — as Sensenbrenner implies — it perverts a justice system that no man is supposed to be above. Our political system and its institutions lose their legitimacy when officials are judged according to different standards. The law must be applied fairly and equally if it is to have any meaning at all. Moreover, to the extent to which the law is a deterrent, if not applied fairly and equally, it may incentivize future misbehavior among individuals who believe they will be protected by being “team players.”

Of all of the things that cause a loss of confidence in and respect for our political system, perhaps the most pernicious is the idea that the game is rigged. The only way to change this perception is for our justice system to demonstrate it is grappling with it through consistent principled action.

March13,2018

Wisconsin Republicans showed a mix of support for former Secretary of State Rex Tillerson, and hope for President Donald Trump's pick to replace him, Mike Pompeo, after Trump fired Tillerson Tuesday morning.

House Speaker Paul Ryan, R-WI, released a statement, saying "I welcome my good friend, Mike Pompeo, as the next Secretary of State. Mike is razor-sharp, a dedicated patriot, and possesses the type of experience that makes him an outstanding choice to be our next top diplomat."

Sen Ron Johnson, R-WI, serves on the Senate Foreign Relations Committee, that will hold a confirmation hearing on Pompeo in April. He sent a statement saying, “Secretary Tillerson served his country admirably in a very difficult job, and I have a great deal of respect for him.” I look forward to meeting with Director Pompeo to discuss his nomination and learn more about his plans for running the State Department.”

UWM Professor Mordecai Lee said the shift in leadership will dramatically change how the state department operates.

"There's going to be the president, and the secretary of state, sort of really together," Lee said. "And then there's going to be the state department, and the state department is going to have policies, and the president and the secretary are going to have policies, and they might not even jive. In other words, they're sort of cutting the state department out of the action."

Sen. Tammy Baldwin, D-WI, tweeted out that "The chaotic revolving door in the Trump Administration continues to undermine our national security abroad and here at home."

Rep. Jim Sensenbrenner, R-WI, said Pompeo is "an experienced and poised leader, which makes him an excellent choice for Secretary of State. I congratulate him and look forward to his speedy confirmation by the Senate.”

Former intelligence chief James Clapper is poised to avoid charges for allegedly lying to Congress following five years of apparent inaction by the Justice Department.

Clapper, director of national intelligence from 2010 to 2017, admitted giving “clearly erroneous” testimony about mass surveillance in 2013, and offered differing explanations for why.

The under-oath untruth was exposed by National Security Agency contractor Edward Snowden, who sparked national debate on surveillance policy with leaks to the press.

Two criminal statutes that cover lying to Congress have five-year statutes of limitations, establishing a Monday deadline to charge Clapper, who in retirement has emerged as a leading critic of President Trump.

Many members of Congress, mostly Republicans supportive of new limits on electronic surveillance, called for Clapper to be prosecuted as the deadline neared, saying unpunished perjury jeopardizes the ability of Congress to perform oversight.

“He admitted to lying to Congress and was unremorseful and flippant about it,” Rep. Thomas Massie, R-Ky., told the Washington Examiner. “The integrity of our federal government is at stake because his behavior sets the standard for the entire intelligence community.”

“Political consideration should not affect the Department of Justice from pursuing this matter,” Rep. James Sensenbrenner, R-Wis., said ahead of the deadline. “Complete and truthful testimony is imperative for Congress to conduct effective oversight. It is clear from the evidence and Director Clapper’s own admission that he lied.”

Justice Department spokeswoman Nicole Navas Oxman declined to comment on Clapper or how perjury cases typically would be handled, saying in an email, “No comment or information to be provided.” Clapper, speaking through a spokesman, declined to comment.

Clapper’s problematic testimony occurred a few minutes before noon on March 12, 2013, when he told Sen. Ron Wyden, D-Ore., “No, sir,” and, “Not wittingly,” in response to a question about whether the NSA was collecting “any type of data at all” on millions of Americans. Wyden later said he provided the question to Clapper before the hearing and unsuccessfully asked Clapper to correct the record.

Months later, Snowden revealed in June 2013 that the U.S. intelligence community obtained secret court orders forcing phone companies to turn over millions of U.S. call records on an “ongoing, daily basis.”

Clapper offered at least two different explanations for his inaccurate testimony. In a June 2013 apology letter, Clapper wrote that he gave the “clearly erroneous” answer because he “simply didn’t think of” the call record collection. But in an MSNBC interview the same month, he saidhe chose to give the “least untruthful” answer because he was “asked a, ‘When are you going to stop beating your wife?’ kind of question, meaning not answerable necessarily by a simple yes or no.”

In a January column for USA Today (“James Clapper’s perjury, and why DC made men don’t get charged for lying to Congress“) Jonathan Turley argued:

The expiration of the statute of limitations for Clapper will have the benefit of conclusively establishing that some people in this city are above the law. In a 2007 study, author P.J. Meitl found that “[a]lmost no one is prosecuted for lying to Congress.” Indeed, he found only six people convicted of perjury or related charges in relation to Congress, going back to the 1940s.

The problem is not that the perjury statute is never enforced. Rather it is enforced against people without allies in government. Thus, Roger Clemens was prosecuted for untrue statements before Congress. He was not given the option of giving the “least untruthful” answer.

Another reason for the lack of prosecutions is that the perjury process is effectively rigged to protect officials accused of perjury or contempt before Congress. When an official like Clapper or Nielsen is accused of lying to Congress, Congress first has to refer a case to federal prosecutors and then the administration makes the decision whether to prosecute its own officials for contempt or perjury. The result has almost uniformly been “declinations” to even submit such cases to a grand jury. Thus, when both Republicans and Democrats accused CIA officials of lying to Congress about the torture program implemented under former president George W. Bush, not a single indictment was issued.

For Clapper, the attempt to justify his immunity from prosecution has tied officials into knots. After Clapper lied before Congress and there was a public outcry, Clapper gave his “least untruthful answer” justification. When many continued to demand a prosecution, National Intelligence general counsel Robert Litt insisted that Clapper misunderstood the question. Still later, Litt offered a third rationalization: that Clapper merely forgot about the massive surveillance system. That’s right. Clapper forgot one of the largest surveillance (and unconstitutional) programs in the history of this country. Litt did not explain why Clapper himself said that he knowingly chose the “least untruthful answer.” Litt added, “It was perfectly clear that he had absolutely forgotten the existence of the … program … We all make mistakes.” Of course, this “mistake” was an alleged felony offense.

Clapper will establish a standard that will be hard to overcome in the future. He lied about a massive, unconstitutional surveillance program and then admitted that he made an “untruthful” statement. That would seem to satisfy the most particular prosecutor in submitting a case to a grand jury, but this is Washington.

By its very nature, a culture of misinformation follows a culture of secrecy as night follows day. As Churchill understood, questions will come up and misinformation is necessary to divert people from stumbling on the truth.

Indeed, Wyden himself unwittingly demonstrated this recently. He was justifiably upset that Director of National Intelligence James Clapper told him that the NSA was “not wittingly” collecting data on millions of Americans when, in fact, it was and Clapper knew it. That the intelligence community defines “collect” in a different way than the dictionary doesn’t change the fact that Clapper was intentionally trying to hide the existence of the program.

Then again, Wyden should have known better than to ask that question in a public hearing. It would not only have been foolish but illegal for Clapper to acknowledge the existence of a highly sensitive and classified program in that setting. So, Clapper was put in a position where he had to either lie or give an answer that tacitly revealed classified information. (Truthfully denying one program and then giving a “I can neither confirm nor deny” response regarding another makes it rather clear that the second program exists.) Clapper tried to avoid either path by giving an answer that was too cute, seemingly denying the program existed while not quite doing so. That was foolish and he was later forced to apologize.

The bottom line here is that, while some members of Congress are entitled to know what our intelligence community is doing, “Congress” isn’t. Some information is shared only with the chairman and ranking member of the House and Senate intelligence committees. Some is shared with the committees in whole but only behind closed doors, in sessions where they’re sworn to secrecy. Very little information is shared in public hearings and, frankly, we probably shouldn’t put too much in what is.

The bottom line, then, is that Clapper had little choice but to lie to Congress given Wyden’s stupidity in asking that question in open session.

March13,2018

President Donald Trump's decision to announce tariffs on steel and aluminum imports to the United States last week drew immediate warnings of a trade war by Republican critics. Trump has argued the move is necessary to protect American industries that have been treated unfairly by foreign trade practices. Republican leaders including Gov. Scott Walker have asked Trump to reconsider, or at least modify the proposal to lessen its effects on states like Wisconsin.

Here is where Wisconsin's congressional delegation stands:

Sen. Ron Johnson (R): Johnson is wary of the move, and wrote a letter to Commerce Secretary Wilbur Ross last week seeking more information and justification for the decision. The senator told WISN-TV's Mike Gousha this weekend that he expects Congress to hold hearings on the policy, which he said is a "risky" one.

In a CNN interview on Sunday, Johnson said talk of canceling NAFTA and imposing steel tariffs has "interjected uncertainty in the economy where it wasn't necessary.

"I’m really concerned that this is counterproductive," Johnson said.

Johnson said he would support a bill to block the tariffs, but said he didn't believe such an effort could pass the Senate.

Sen. Tammy Baldwin (D): Baldwin signaled some level of support for the policy, but expressed concerns that without an exemption for European countries, Wisconsin could be negatively affected.

"I believe the best way to support Wisconsin workers is to put in place strong Buy America standards, renegotiate a better deal on NAFTA, and take on China’s cheating," Baldwin said in a statement. "The President’s announcement last week sends a strong message to bad actors like China on steel and aluminum and as the nation’s leading paper producer, Wisconsin needs President Trump to do more to target China’s cheating — which has hurt our paper economy and led to layoffs. I also want an exemption for our European trading partners, so Wisconsin’s manufacturing and farming economy isn’t hurt going forward."

"I disagree with this action and fear its unintended consequences. I am pleased that the president has listened to those who share my concerns and included an exemption for some American allies, but it should go further," Ryan said in a statement. "We will continue to urge the administration to narrow this policy so that it is focused only on those countries and practices that violate trade law. There are unquestionably bad trade practices by nations like China, but the better approach is targeted enforcement against those practices. Our economy and our national security are strengthened by fostering free trade with our allies and promoting the rule of law."

Rep. Mark Pocan (D-2nd District): "I have always supported targeted tariffs — especially those as they relate to steel dumping from China and other unfair trade practices — as critical to spurring domestic production and creating middle class jobs," Pocan said in a statement. "Unfortunately, the President arrives at his views on trade very differently than I do. With his mixed messages on trade, it remains to be seen what he will do and whether these tariffs will actually support American workers."

Rep. Ron Kind (D-3rd District): Kind opposes the policy, and urged Trump to use a "scalpel, not a hammer" to pressure China.

"From the car in their garage to the beer in their fridge, Wisconsinites use aluminum and steel every day. The recent uncertainty about new tariffs will cost us jobs, increase the cost of Wisconsin products, and slow our economy," Kind said in a statement. "We should be setting high standards for how we trade with the rest of the world, and should never mirror China's bad behavior in negotiations. The consequence of retaliation would be widespread across the state, and could threaten jobs in industries and businesses Wisconsin is proud of, including Wisconsin dairy, cranberries, breweries and Harley Davidson."

Rep. Gwen Moore (D-4th District): Moore, on Twitter, said a decision like imposing tariffs "requires careful & strategic consideration, not an off the cuff roll-out more worthy of reality TV than the presidency."

Rep. Jim Sensenbrenner (R-5th District): "I recognize that we must address the unfair trade practices of foreign countries," Sensenbrenner said in a statement. "However, I have concerns that these broad tariffs will have unintended consequences on manufacturers, businesses, and consumers in southeastern Wisconsin. I urge the President to reconsider."

Rep. Glenn Grothman (R-6th District): A spokesman for Grothman did not immediately respond to a request for comment.

Rep. Sean Duffy: (R-7th District): Duffy is supportive of the move to put pressure on countries that put the United States at a disadvantage, but showed some concerns about the impact of tariffs on Wisconsin.

"American workers produce the best products in the world and will compete with anyone in the world; and they deserve a level playing field. That’s why it’s encouraging to see President Trump put America first and fight for fairer trade," Duffy said in a statement. "Canada in particular has used free trade with the United States to injure Wisconsin dairy farmers at every turn, and I appreciate the President pushing back against their unfair practices. However, I urge the Trump Administration to consider the long-term ramifications of tariffs so that other sectors of our economy are not harmed."

Rep. Mike Gallagher (R-8th District): Gallagher has "serious concerns" with the tariffs, which he said in a statement are "overly broad."

"As history has shown — as recently as 2002 — this type of indelicate protectionism rarely, if ever, works," Gallagher said, adding that reciprocal tariffs from the European Union would hurt Wisconsin businesses and consumers.

"Rather than punishing the Chinese like they were intended to do, I’m afraid these catch-all tariffs will hurt hardworking Wisconsin families and businesses. We need to adjust course instead of potentially decimating local industry in Northeast Wisconsin, like our beer producers and dairy farmers who could effectively be unable to sell their products abroad," Gallagher said.

March12,2018

U.S. spy chief James Clapper is celebrating a happy anniversary this week. It’s been five years since he lied to Congress and the American public about the National Security Agency’s spying activities. Clapper’s off the hook for perjury– and Americans are still largely in the dark about spy agency activities.

On this day five years ago, Clapper lied to the U.S. Select Committee on Intelligence when Sen. Ron Wyden (D-Ore.) asked him if the NSA was collecting information on Americans.

“No, sir. Not willingly,” Clapper said.

Three months later, whistle-blower Edward Snowden would blow the top off the NSA’s warrantless surveillance programs and reveal Clappers big lie.

Clapper would later claim that it was the “least untruthful answer” he could give at the time.

The former top spook’s big lie is a moment in history that many Americans have likely long forgotten– but in Washington, a handful of lawmakers recalled Clapper’s whopper as the Monday deadline to charge him neared.

As reported by The Washington Examiner:

Many members of Congress, mostly Republicans supportive of new limits on electronic surveillance, called for Clapper to be prosecuted as the deadline neared, saying unpunished perjury jeopardizes the ability of Congress to perform oversight.

“He admitted to lying to Congress and was unremorseful and flippant about it,” Rep. Thomas Massie, R-Ky., told the Washington Examiner. “The integrity of our federal government is at stake because his behavior sets the standard for the entire intelligence community.”

“Political consideration should not affect the Department of Justice from pursuing this matter,” Rep. James Sensenbrenner, R-Wis., said ahead of the deadline. “Complete and truthful testimony is imperative for Congress to conduct effective oversight. It is clear from the evidence and Director Clapper’s own admission that he lied.”

Clapper will continue to enjoy his retirement unmolested. But Americans should still use this as a reminder that government– and especially its intelligence agencies– is far more interested in protecting its agendas than the rights of individual Americans